The Equal Employment Opportunity Commission (EEOC) continued its proactive stance towards transgender employees in a ruling released early last month. In its April 1, 2015, decision, the EEOC determined that a transgender civilian employee at Redstone Arsenal had experienced discrimination when she was restricted from using a common women’s restroom. This case highlights the EEOC’s aggressive policy of eliminating discrimination on the basis of sex and gender identity under Title VII of the Civil Rights Act of 1964.
Since 2004, Tamara Lusardi has been employed with the U.S. Army Aviation and Missile Research Development and Engineering Center (AMRDEC) as a software quality assurance analyst. Beginning in 2010, Ms. Lusardi began transitioning her gender presentation from male to female. As part of the transition, Ms. Lusardi legally changed her name on all work-related documents, including her work email address. During her transition, Ms. Lusardi met with her supervisors in October 2010 to discuss how she would explain her gender transition to colleagues. Also discussed at the meeting was which restroom Ms. Lusardi would use once she began presenting publicly as a woman. Ms. Lusardi and her supervisors agreed that she would use a single-user restroom instead of the common multi-user women’s restroom until after she had undergone surgery. The agreed-upon transition plan was written down as a memo from Ms. Lusardi to her supervisors, and approved by upper management in early November 2010.
On November 22, 2010, Ms. Lusardi sent an email to her supervisors and coworkers explaining that she was transitioning to a woman and would use the single-user restroom. The following Monday, Ms. Lusardi began presenting as a woman at work.
After presenting as a woman, Ms. Lusardi exclusively used the single-user restroom with the exception of three occasions in early 2011. On each of those occasions, the single-user restroom was unavailable for use and the only restrooms available were the common women’s restroom or the common men’s restroom. Ms. Lusardi chose, consistent with her gender identity, to use the multi-user women’s restroom on each of the three occasions. After using the common women’s restroom, Ms. Lusardi was confronted by one of her supervisors and told that she could not use the women’s restroom.
EEOC Investigation and Decision
After Ms. Lusardi filed a formal complaint with the EEOC in March 2012, the Department of the Army conducted an investigation and issued a final decision.* Return to top. The Army concluded that there were legitimate, non-discriminatory reasons for requiring Ms. Lusardi to use the single-user restroom. Additionally, the Army concluded that the reprimands from Ms. Lusardi’s supervisor about restroom use were not sufficiently severe or pervasive to constitute a hostile work environment. Ms. Lusardi appealed the Army’s decision directly to the EEOC.
Addressing first the issue of whether Ms. Lusardi could be prevented from using the common women’s restroom, the EEOC concluded that the Army violated Title VII by treating Ms. Lusardi differently on the sole basis of her gender. This violated Title VII’s requirement that “[a]ll personnel actions affecting employees . . . shall be made free from discrimination based on . . . sex.” 42 U.S.C. § 2000e-16(a). Squarely rejecting the argument that the Army was permitted to restrict Ms. Lusardi’s use of the common women’s restroom until she had undergone a medical procedure related to her transition, the EEOC stated:
Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals or anyone else). An agency may not condition access to facilities—or to other terms, conditions, or privileges of employment—on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.
Once a transgender employee notifies her employer that she has begun living and working full time as a woman, the EEOC stated, her employer must allow her access to the women’s restroom and cannot treat her differently on the basis of her gender. In fact, the EEOC took its conclusion one step further, stating, depriving Ms. Lusardi “of equal status, respect, and dignity in the workplace . . . deprived her of equal employment opportunities.”
The Army was, in turn, responsible for this conduct because the Army did not take prompt and effective corrective action to address it.
As a result of its findings, the EEOC ordered the Army to grant Ms. Lusardi equal and full access to the common women’s restroom and ensure that supervisors and coworkers cease all discriminatory and harassing conduct towards her. Additionally, the EEOC ordered the Army to provide training at AMRDEC (8 hours for all employees and contractors and 16 hours for managers) emphasizing issues related to gender identity, harassment, and preventing retaliation. The EEOC also ordered the Army to consider whether to discipline the supervisor who reprimanded Ms. Lusardi from using the common women’s restroom. Lastly, the EEOC ordered the Army to conduct an investigation into whether Ms. Lusardi was entitled to compensatory damages for her pecuniary or non-pecuniary losses.
Employers need to be mindful of issues related to access to restrooms and other facilities when notified of a transgender employee’s intent to transition. Although the EEOC’s decision in this case is not binding on private-sector employers, it provides critical insight into the EEOC’s thinking about transgender employees. The EEOC encourages employers to work with transgender employees to develop individual plans for workplace transitions. However, the EEOC cautions that an employee may never prospectively waive his or her rights under Title VII. Because of this, employers need to comply with Title VII requirements before, during, and after the time of transition. Being knowledgeable and up to date on Title VII employment issues is the best way to prevent a lengthy—and often—expensive EEOC investigation and potential lawsuit.
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*Ms. Lusardi also asserted complaints that another supervisor intentionally and repeatedly referred to her by her former male name, by male pronouns, and as “sir.” These references were made during heated exchanges between Ms. Lusardi and her supervisor or while her supervisor smirked and laughed among a group of Ms. Lusardi’s coworkers. The EEOC found this conduct to constitute harassment contributing to a hostile work environment in violation of Title VII.